I Have Been Served, Certainly I Can Handle this Alone…

As part of the procedural requirements to get a lawsuit going, you must either be the server or the servee. In family law cases, sometimes you are served with more than one document at a time. For instance, you could be served not only with the petition, but also with a notice of hearing. The key is what do you once you are served. If anything, never just sweep it under the rug. While it is something that you do not want to be troubled with, unfortunately, the process has begun and now you are forced to deal with it. If you do not take some form of action, a default judgment will be obtained against you. In divorce and child custody cases, this is especially problematic. It is either your property, debts, and or child on the line. You do not want to miss your opportunity to fight.

Also, many people operate under the misconception that you can do this alone. The Texas Family Code is very complex. Not only that, there are procedural issues to consider in the Texas Rules of Civil Procedure. There might even be some criminal issues mixed in which would be covered, in part, by the Texas Penal Code. Given that, the very task of filing an answer to the petition can be daunting and intimidating. Where do you get the document? What is an answer? How do I file an answer? These are just a few of the introductory questions.

The key is to never do this alone, or what is called pro se. An example of how this could go south quickly is in a recent appellate decision rendered by the Dallas Fifth District Court of Appeals in Friedman v. Friedman. In this case, the woman filed a petition for divorce and had her husband served. He did not do anything, and the woman obtained a default judgment and the judge signed a final decree of divorce. The husband did not file an answer and he had been properly served, thus the judge could do this. The final decree of divorce dispensed with the marital property and debts. This was not enough for Mr. Friedman to learn his lesson, because he then filed his own appeal in the form of a motion for new trial and drafts the document himself.

Within his motion for new trial, Mr. Friedman stated that he did not answer the original petition because of mistake–he claimed to have been informed to not answer it. While that may be true, he is still trying to argue an appeal on his own. The problem with this, as you can imagine at this point, is that the motion for new trial (which was a generated document he bought offline) was not filled out correctly and he did not have the proper attachments and thus, it was thrown out. This is because Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), sets out a 3 prong test that must be met (both plead to and argued on appeal) that must be satisfied in order for a motion for new trial to be granted. You have to be very careful in formulating your arguments and making sure you do not forget anything. Unfortunately, Mr. Friedman forgot to include a few valid arguments in his motion, and therefore it was denied.

Do not let this happen to you. Contact your local attorney at Guest & Gray today so that we may help with all of your family law needs.